From: David Lawson

November 13, 2016

Dear FairWay Resolution Limited,

I refer to your release to me of a copy of the FairWay Resolution Training Manual on 20 October 2016 and public release upon Fairway Resolutions website on 18 October 2016 http://www.fairwayresolution.com/resourc....

With the release of the FairWay Resolution reviewers training manual coming 5 months after the Ombudsman Professor Ron Paterson's findings, opinions and recommendation that FairWay Reviewers along with FairWay Resolution Limited and ACC are subject to the official information act, because the role that the Reviewer conducts was found to be an administrative function prior to an ACC claimant moving on to the Court of Appeal, FairWay Reviewers and FairWay were unable to rely upon section 2 (6), (b) of the OIA to withhold information and contract out of all aspects of the Official Information Act 1982 by relying upon being exempt from the Act because they perform judicial functions in relation to a tribunal, which the OIA defines as being outside the gambit and jurisdiction of the OIA 1982.

ACC contended in discussions with the Ombudsman as noted on the quick summary on the Ombudsman's websites as follows;

"New Opinion - FairWay subject to OIA, Reviewers' Benchbook to be released
June 20, 2016

Ombudsman Ron Paterson upheld a complaint against FairWay Resolution Ltd. FairWay refused a request for a document known as the Reviewer's Benchbook. The Benchbook is resource developed by FairWay for use in undertaking review services in relation to ACC decisions. The requester submitted that the information available to reviewers should also be available to those who appear before them. For its part, FairWay contended that its reviewers exercise a judicial function and therefore that FairWay was not subject to the OIA (see section 2(b) OIA). In the alternative, FairWay argued that the Benchbook was a trade secret (s 9(2)(b)(i) OIA) and/or that its release would unreasonably prejudice its commercial position (s ((2)(b)(ii)). The Ombudsman rejected the argument that FairWay could be considered to be exercising a judicial function and did not accept that the Benchbook was a trade secret. Even if release would give rise to unreasonable prejudice to FairWay's commercial position, the strength of the public interest favoured release of the information. You can read the full opinion here."

FairWay Resolution did not however contend through investigation of case number 399972 by the Ombudsman that FairWay and or FairWay Reviewers, appointed/contracted for services by ACC were exempt from their obligations of the OIA 1982 under section 2 subsections (6) (e) because the FairWay Reviewers were exempt from the classification of a department and or organisation under the OIA because the FairWay Reviewer forms part of, or act as;

"a commission of inquiry or board of inquiry or court of inquiry or committee of inquiry appointed, pursuant to, and not by, any provision of an Act, to inquire into a specified matter; or"

Ombudsman Professor Paterson noted that both the ACC and FairWay Resolution are agents of the Privacy Act 1993, and noted that the FairWay Reviewer is appointed and remunerated for service contracts engaged with ACC, and are answerable to ACC.

Sections 39 and 137 of the ACC Act define both a FairWay Reviewer and also a FairWay Resolution employee who provide a service excluding treatment to a claimant as being considered for the purposes of section 39 ( c) of the ACC Act as a person who provides services (excluding treatment) to claimants on behalf of or authorised by the Corporation.
The Corporations role under Section 137 supports ACC's authorisation of both a FairWay Resolution staff member and a FairWay branded Reviewer as being a person who provides services excluding treatment to a claimant.

Therefore based on what Professor Paterson has found and released in his findings, opinion and recommendations in May 2016 case number 399972 that it logically follows that ACC contracted and remunerated FairWay Resolution Reviewers' and FairWay Resolution Staff are also subject to the full obligations of the code of Claimant Rights which enshrines an ACC claimants Privacy Rights under Right 7 of the Code which covers the compliance with the the Privacy Act 1993 and Health Information Privacy Code, since the following reasons for exemption from adhering to the OIA 1982 were either overruled by the Ombudsman, and or not contended by FairWay Resolution that FairWay Resolution Reviewers were exempt from the definition of department and or organisation, and therefore exempt from adhering to the OIA 1982, by relying on either;

section 2(6) (b) that reviewers are carrying out the judicial functions of a tribunal, which was overruled and found by the Ombudsman that the reviewers were conducting administrative functions only, or contending that,

section 2(6)(b) that the reviewers form or are carrying out the functions of a commission of inquiry or board of inquiry or court of inquiry or committee of inquiry appointed, pursuant to, and not by, any provision of an Act, to inquire into a specified matter; which FairWay did not put forward to the Ombudsman for consideration to rely upon to contend that the FairWay Reviewer was exempt from the provisions and obligations of the Official Information Act.

Essentially section 2 subsection (6) (b) and section 2 subsection (6) (e) as reasons for exemption under the Official Information Act 1982 are mirrored exactly within the provisions of the Privacy Act 1993 legislation as follows;

OIA section 2 (6) (e) mirrors the Privacy Act 1993 exemption for the Privacy Act 1993's definition of what constitutes an Agency and or department for the purposes of the being exempt from the PA 1993 under section 2 (6) (xii) which both read

"a commission of inquiry or board of inquiry or court of inquiry or committee of inquiry appointed, pursuant to, and not by, any provision of an Act, to inquire into a specified matter; or"

The following information is stated on page 28 of the FairWay Resolution Reviewers Training Manual which misrepresents the findings, and opinion of the Ombudsman in case number 399972;

"6.9.4 Privacy Act 1993 and the Health Information Privacy Code 1994

The reviewer is not an "agency" for the purposes of the Privacy Act 1993. This is for two
reasons. First, the Privacy Commissioner has determined that a reviewer seeking information on a matter in issue is (for the purposes of the Privacy Act) a tribunal acting in relation to its judicial functions. Such a tribunal is not an agency. Secondly, it is considered that a reviewer comes within the exception, "(xii) A commission of inquiry or board of inquiry or court of inquiry or committee of inquiry appointed, pursuant to, and not by, any provision of an Act, to inquire into a specific matter." Therefore, the reviewer is not bound by the Privacy Act and the Health Information Privacy Code, and does not have to comply with the restrictions the Act and the Code puts on the collection, use, and disclosure of personal information. The reviewer must however, observe the principles of natural justice and does not have license to ride roughshod over personal information rights. Even though the reviewer is not an "agency"for the purposes of the Privacy Act and Health Information Privacy Code, care must be taken to observe the restrictive principles described in Chapter 3. Restrictive principles, above. For instance, a reviewer should not attempt to obtain information about a party from a health
professional, without the consent of all parties."

***********************************************************************************************************
REQUESTS FOR UNDER THE OFFICIAL INFORMATION ACT 1982:

QUESTION 1 OIA

1. I request under section 23 of the Official Information Act 1982 the Chief Executive Greg Pollock's written statement why when FairWay Resolution Limited supplied me a copy of the FairWay reviewers training manual as to why the manual provided to me in October 2016, did not come with a qualifying letter confirming that 5 months previously FairWay Resolution's Reviewers appointed and remunerated by ACC for service contracts were found by the Office of the Ombudsman not to be carrying out the judicial functions of a tribunal, but simply the administrative review functions as contracted by the ACC and therefore are not exempt from the Official Information Act and thereby as I have pointed out above are logically also not exempt from complying strictly with the provisions of the Privacy Act 1993, afforded to the ACC Claimant under the sections 39 to 47, 133 through 148 of the the ACC Act, particularly sections 39,40,45, and 137

OIA QUESTION 2

2. I also request subject to section 23 of the Official Information Act 1982 a written statement from Chief Executive Greg Pollock's confirming why FairWay Resolution in having released the FairWay Reviewers Training Manual in October 2016, did not either;

1. Prior to release in October 2016 amend and update page 28 of the Reviewers Training Manual under the subject "6.9.4 Privacy Act 1993 and the Health Information Privacy Code 1994" to reflect that FairWay Reviewers' with the Ombudsman having ruled that;

(a) the reviewers do not preform any judicial functions fitting of a tribunal that would exempt the FairWay Reviewers being exempted under section 2 (6) (b) from being bound by the Official Information Act 1982, and

(b) furthermore that Fairway did not contend in the investigation with the Ombudsman that the FairWay Reviewer forms part of a commission of inquiry or board of inquiry or court of inquiry or committee of inquiry appointed, pursuant to, and not by, any provision of an Act, to inquire into a specified matter to rely for exemption under section 2 (6) (e) of the OIA Act 1982,

QUESTION 3

It would be appreciated if you could supply a written statement from Mr Greg Pollock as to why the Executive Management and Legal Team of FairWay Resolution has not proactively taken it upon themselves to remove the following outdated opinion from page 28 of the reviewers training manual under "6.9.4 Privacy Act 1993 and the Health Information Privacy Code 1994" which incorrectly states that;

"The reviewer is not an "agency" for the purposes of the Privacy Act 1993. This is for two
reasons. First, the Privacy Commissioner has determined that a reviewer seeking information on a matter in issue is (for the purposes of the Privacy Act) a tribunal acting in relation to its judicial functions. Such a tribunal is not an agency. Secondly, it is considered that a reviewer comes within the exception, "(xii) A commission of inquiry or board of inquiry or court of inquiry or committee of inquiry appointed, pursuant to, and not by, any provision of an Act, to inquire into a specific matter." Therefore, the reviewer is not bound by the Privacy Act and the Health Information Privacy Code, and does not have to comply with the restrictions the Act and the Code puts on the collection, use, and disclosure of personal information."

Before FairWay sent the copy of the reviewers training manual to me.

Replacing the above incorrect information with confirmation that the Reviewer is not only not a tribunal, nor a commission of injury or board of inquiry or court of injury or committee of of inquiry appointed, pursuant to, and not by, any provision of an Act, to inquire into a specific manner, and therefore the Reviewer is therefore strictly obliged to comply with the Privacy Act 1993 in full.

It should also be clearly stated under "6.9.4 Privacy Act 1993 and the Health Information Privacy Code 1994" that the Reviewer is subject to the privacy provisions afforded to an ACC client under the ACC Code of Claimants Rights and the Reviewers' obligations to comply with the relevant sections under Part 3 of the Accident Compensation Corporation Act which can be found in sections 39 through 47 of the ACC Act.

The Reviewer is accountable under the ACC Act because the reviewer falls within the definition of the Corporation under section 39 which states;

39 Meaning of Corporation
In sections 40 (Purpose of the Code) and 45 (Corporation's obligations in respect of the Code), Corporation includes-

(c) a person who provides services (excluding treatment) to claimants on behalf of or authorised by the Corporation, which of course is brought into play with the Corporation
being responsible under section 137 subsections (1), (2) and (3) of the ACC Act 2001 for engaging and allocating reviewers. There is no difference between an ACC Claimants rights under the code for matters of concern that arise from Code breaches that are attributable to an ACC lawyer, An ACC medical or vocational assessor, or an ACC reviewer branded a FairWay Reviewer,

Under section 41 the Code applies generally to the whole ACC Act and not just Part 3 of the ACC Act ( section 41 (1))

Section 45 reads
45 Corporation’s obligations in respect of Code
(1) The Corporation must, in all its dealings with claimants, ensure that its actions are consistent with and uphold the rights of claimants in the Code.

(2) The Corporation must—
(a) make the Code accessible to claimants and members of the public generally; and

(b)promote awareness of the Code among claimants and members of the public generally.

(3)For the purposes of subsection (2), the Corporation must make the Code accessible, and promote awareness of the Code, in a variety of communications media and languages.

With a FairWay Reviewer forming part of the "Corporation" as defined by section 39 and 137 of the ACC Act 2001 then the FairWay Reviewer is bound by the ACC Act 2001 section 41 and among compliance and observance of the other 7 ACC Claimant Rights under the Code the FairWay Reviewer is strictly bound and subject compliance with Right 7 of the Code of Claimant Rights, which of course are the ACC Claimants rights afforded under the Code of Claimants Rights.

Right 7 You have the right to have your privacy respected.

(a) We will respect your privacy.
(b) We will comply with all relevant legislation relating to privacy.
(c) We will give you access to your information, in accordance with legislation.

As CEO of FairWay Resolution Limited I am sure that Mr Greg Pollock, the Legal Team and Ms Rebecca Lee Privacy and Complaints Manager, are aware of Review Number 154837 dated 9 September 2009 in which Reviewer John Greene (for which I have been provided consent by the claimant concerned to be able to quote) that found that the ACC office of the Complaint's Investigation Team had the jurisdiction to investigate the actions of a medical assessor for which the ACC claimant concerned had brought a complaint under the code of claimants rights for, (which just happened to be a medical assessor, but could equally have been an ACC's counsel and or the FairWay Reviewer that is appointed by ACC to provide services to the claimant, and of course ACC.)

OIA QUESTION 4

As the senior management of FairWay Resolution offering services excluding treatment to the ACC Claimants, I also request under section 23 the written statement from Mr Greg Pollock as to why with FairWay Resolution Limited also technically defined under sections 39 and 137 of the Act as being part of the Corporation, have not complied with their statutory obligations under the ACC Act 2001 in not having complied with section 45 of the ACC Act 2001 in not having displayed clearly Right 7 of the Code of Claimant Rights on page 28 under the heading 6.9.4 Privacy Act 1993 and the Health Information Privacy Code 1994, and that FairWay Resolution Reviewers contracted by ACC are encouraged strongly to comply strictly with the provisions of the ACC Act and Right 7 of the ACC Code of claimant rights. This has become even more relevant since Ombudsman Professor Paterson released his findings that FairWay Resolution Reviews are subject to the OIA and not exempt from the ACt because the functions that they are providing are administrative in nature only and not judicial functions associated with a tribunal.

Right 7 States a FairWay Reviewer's Privacy Rights to the claimant since May 2016 at the very least:

Right 7 You have the right to have your privacy respected.

(a) We will respect your privacy.
(b) We will comply with all relevant legislation relating to privacy.
(c) We will give you access to your information, in accordance with legislation.

Section 45 outlines FairWay Resolution's (as part of the Corporation appointed and providing services excluding treatment to ACC Claimants) responsiblity for training their branded reviewers (whom have been appointed by ACC and also provide services excluding treatment to acc claimants and hence also therefore defined as part of the Corporation) in all aspects of the Code and the statutory application of the Code applying to all aspects of the ACC Act 2001 under section 45 (1), (2) (a) and (b).

45 Corporation’s obligations in respect of Code

(1)The Corporation must, in all its dealings with claimants, ensure that its actions are consistent with and uphold the rights of claimants in the Code.
(2)The Corporation must—
(a) make the Code accessible to claimants and members of the public generally; and
(b) promote awareness of the Code among claimants and members of the public generally.
(3) For the purposes of subsection (2), the Corporation must make the Code accessible, and promote awareness of the Code, in a variety of communications media and languages.

Therefore on Page 28 of the Reviewers Training Manual under the Reviewers obligations and responsibilities under the "6.9.4 Privacy Act 1993 and the Health Information Privacy Code 1994" The ACC Code of claimants Rights, Right 7 should be clearly displayed along with the ACC Act's impact of the Code, and reviewers should be encouraged to strictly adhere to the Privacy Act 1993 and the Health Information Privacy Code 1994.

OIA QUESTION 5

On page 28 of the Reviewers Training Manual released in October 2016 FairWay make the following comments;

First, the Privacy Commissioner has determined that a reviewer seeking information
on a matter in issue is (for the purposes of the Privacy Act) a tribunal acting in relation to its judicial functions. Such a tribunal is not an agency. Secondly, it is considered that a reviewer comes within the exception, "(xii) A commission of inquiry or board of inquiry or court of inquiry or committee of inquiry appointed, pursuant to, and not by, any provision of an Act, to inquire into a specific matter."

It would be appreciated if you could provide me with a copy of the Official documentation provided to FairWay Resolution and FairWay Reviewers by the Privacy Commission in which the Privacy Commission made the clear determination that;

1. a reviewer is a tribunal acting in relation to it's judicial functions i.e. that FairWay Reviewers could prior to the Ombudsman's opinion 399972 in May 2016, contract out of the OIA 1982 by relying upon section 2 (viii), and or section 2 (xii), and thus placing the reviewer outside of the Jurisdiction of what constitutes an agency for the purposes of the Privacy Act 2016.

QUESTION 6

It would be appreciated if FairWay Resolution could supply me with copies of the legal advice FairWay Resolution has received since Ombudsman Professor Paterson released his findings that ACC contracted FairWay branded Reviewer's only provide administrative functions as opposed to judicial functions required of a tribunal, and therefore FairWay Reviewers have been found to be bound by the full implications of the Official Information Act.

I would also appreciate being supplied with the official legal/opinion documentation that both the FairWay Reviewers and or FairWay resolution have engaged in in the context of applying transperency and fairness that has come from the Ombudsman's recommendation across the review process to applying the exact same logic and reasoning to the manner in which FairWay Reviewers approached Privacy Matters with ACC claimants prior to Professor Paterson's findings, opinion and recommendations since if a reviewer does not meet the exemption criteria under section 2 (6) (b) and 2 (6) (e) of the OIA 1982, then the same reviewers can hardly be seen to be meeting the threshold under sections 2 (viii) and 2 (xii) of the Privacy Act 1993 to allow for the FairWay Reviewers to be able to contract out from their obligations under the Privacy Act 1993, and most importantly a claimants privacy rights afforded to them under the ACC Act 2001 and the ACC Code of Claimants Rights

QUESTION 7

Obviously with the release of the Ombudsman's ruling in May 2016,stating that the Ombudsman has ruled that FairWay Resolution Reviewers are not preforming the role of a judiciary for the purposes of a tribunal, being followed 5 months later with the release of the Reviewers Training Manual which predates the Ombudsman's release, in which FairWay project to FairWay Reviewers, and the greater public in having released the training manual without amendment and or qualification thatReviewers are not bound by the provisions of the Privacy Act 1993, nor the Health Information Privacy Code 1994, because prior to the Ombudsman's ruling FairWay Resolution and FairWay Reviewers claim that the Privacy Commission had ruled that section 2 (viii) and section 2 (Xii) are valid reasons for the FairWay reviewer being exempt from adhering strictly to the Privacy Act 1993 and HIPC 1994.

It would be appreciated if you could confirm when FairWay will be correcting this anomaly/inconsistency in their reviewers training manual and return the transparency (remove all ambiguity that FairWay Reviewers are definitely not preforming judicial functions) and fairness by promoting the code of claimants rights under section 45 of the ACC Act 2001 and incorporating Right 7 (Privacy Right) in the reviewers training manual under the 6.9.4 Privacy Act 1993 and the Health Information Privacy Code 1994 , and confirming to the FairWay Resolution staff including reviewers that all persons should comply fully with protecting fully an acc claimant's code of claimants rights, inclusive of Right 7 (Privacy Rights) under the Code.

Under s16(2) of the Official Information Act, my preferred way of receiving a response is by email to the address from which ACC received the original request, not by post.

I appreciate your time and assistance and have copied in Ombudsman's Professor Paterson's findings opinion associated with a FairWay Reviewer having not have been found to have been doing judicial functions fitting of a tribunal following my OIA requests.

32. The relevant section 2(6)(b) and (ba) exemptions of tribunals and Crown entities from
coverage under the OIA require that reviewers are undertaking a judicial function when
conducting reviews.

33. Both CIR v B and Trapp v Mackie were considered by the High Court in Director of Human Rights Proceedings v Catholic Church for New Zealand.9 In that case the Court was considering the issue of whether the Catholic Tribunal, an unincorporated body within the Church, which made decisions on annulment of Catholic marriages, was a ‘tribunal’ under the Privacy Act. It held that the word ‘tribunal’ in the definition of ‘agency’ in s 2(1) of the Privacy Act 1993 referred to bodies with a judicial function, recognised by law and likely to have been created by or pursuant to an Act, and not to non-statutory bodies.

34. While that decision is not authority for saying that review officers cannot be a tribunal,
the Court made several observations that appear to be relevant when considering that
issue.

35. First, the Court noted that in CIR v B Wild J, with the agreement of the parties, did not
directly confront the issue of whether the review officer was a ‘tribunal’. He had applied
the Trapp v Mackie tests instead to the question whether the review officer had been
acting judicially or administratively.

36. Secondly, the Court observed:
[71] If what might be termed the ‘parent’ organisation is itself captured by the broad definition of ‘agency’, it is unclear what justification there might be for isolating out and treating as a separate entity a body set up within that overall entity for the purpose of performing a particular function. There is no doubt that para (a) of the definition of ‘agency’ would extend to such a body.

The defendant’s argument has it first being caught by para (a), and then excluded by para (b). Apart from the requirement that that body perform ‘judicial functions’, expressed in para (b)(viii) of the definition, there would be no other limitation on the ability of the parent body to carve out a segment of its affairs for exemption from the provisions of the Privacy Act. It seems to me that would be wrong as a matter of principle. Further, I cannot see how it can be legally achieved by resort to private rule-making powers. In my view, if the
parent organisation is within the definition of ‘agency’, then so must the entities that it establishes under its aegis, given that they are not separate corporate entities.

37. Both FairWay and ACC are agencies within the meaning of the Privacy Act. Neither is a tribunal or has judicial functions. FairWay has no statutory authority to appoint reviewers under the ACC Act.

38. Although ACC has a statutory duty to engage reviewers (either on a contract of service or contract for services) and to arrange for the allocation of a reviewer as soon as
practicable after receiving an application for a review, I do not accept that in engaging
reviewers and allocating applications, ACC can be said to be establishing tribunals having judicial functions.10 In particular, the fact that the ACC Act contemplates such reviewers being ACC employees, militates against the proposition that in engaging a reviewer ACC is establishing a judicial tribunal performing judicial functions.

39. In Arbuthnot11 the Supreme Court held that a Benefit Review Committee (BRC) was a purely administrative body on the grounds that it did not have sufficient independence,
since such committees comprised three members, two of whom were appointed by the
Chief Executive. ACC reviewers act alone and may be employees. Further, ACC has a
statutory duty of allocating claims to them.12

40. Although sections 138 and 139 of the Act impose a duty on a reviewer to act
independently, and on the Corporation not to allocate a claim to a reviewer who has had
any involvement in the claim other than as a reviewer, the statutory link between a
reviewer and the ACC under the ACC Act appears to be closer than that of a BRC with the Ministry of Social Development (formerly Department of Work and Income).

41. The fact that reviewers are expressly required to act independently when conducting a review cannot, in my view, affect their statutory status. Such provisions are not
uncommon.13. In this case it simply means that ACC may not direct or give instructions to its employees or contractors (as the case may be) about the conduct of a review. It does not mean that they are unaccountable to ACC for the way they perform their duties as employees or contractors.

42. I do not consider that ACC (far less FairWay) can determine or change the statutory
nature of reviewers’ functions by the manner in which it engages reviewers, as this
would be to ‘carve out a segment of its affairs for exemption from the provisions of the
Privacy Act’. 14. If (as Arbuthnot suggests) ACC employees are performing administrative
functions in conducting a review, I see no basis for accepting that, by opting not to use
employees for that purpose, ACC can transform a reviewer into a tribunal performing
judicial functions.

43. FairWay also refers to the decision of Clifford J in Willson v ACC and DRSL,
15 noting the requirement that the review be undertaken independently, instead of by ACC. Although Clifford J did comment on the requirement that a reviewer act independently, this is insufficient to suggest that a review is judicial or even quasi-judicial. Rather, the Court focused on the role of DRSL under the delegation of ACC and concluded that it could bring no ‘separate interest’ to the proceedings, nor speak independently of ACC, and should therefore not be joined as second respondent.
44. I note further that in Wikeepa v Accident Rehabilitation and Compensation Insurance
Corporation,16 the Court identified the Review Officer as the person who has the
authority to ‘make a decision on behalf of the Corporation as it affects the claimant and
the entitlements of that claimant’. Beattie J clearly identified that the role of the review
under sections 89 and 90 of the Accident Rehabilitation and Compensation Insurance Act
1992 was different in character and purpose to that of the available appeal to the Courts.

45. As to the argument that the relevant provisions (or regime) in the ACC legislation are not analogous to those in the Police Act 1958, the Supreme Court’s decision in Creedy simply illustrates that (as acknowledged in Trapp) it is not a matter of making an arithmetical analysis of the ‘touchstone’ tests, but of looking at the statutory scheme as a whole.

46. The statutory requirement for reviewers to act independently has been emphasised. As noted above, even in the case of administrative review there is an expectation of
independence and impartiality. I also note that: a. statutory provisions relating to reviews are located in Part 5, ‘Dispute Resolution’. Reviews are identified as the first step in dispute resolution, prior to recourse to the Courts. An initial administrative review by involved staff does not preclude an intention to offer a further, independent administrative review of the claim;

b. although there is an obligation to independently review the decision, the process itself is not independent of ACC. ACC receives and considers the request for a review, and is responsible for the engagement and allocation of a reviewer.

Disclosure of relevant information is the responsibility of ACC;

c. the reviewer has no power to compel an individual to attend a hearing;

d. the reviewer has no power to compel the production of evidence or information;

e. although a dispute between adverse parties, the procedure adopted by reviewers
is inquisitorial and informal, not adversarial. Parliament has deliberately shifted
reviews from an adversarial and court-like process;

f. reviewers are directed to avoid legal technicalities, and to structure reviews in a
manner conducive to self-representation;

g. strict timelines apply to the reviewer; where a date for the hearing has not been
set within three months of ACC having received the application, the reviewer is
deemed to have made a decision in favour of the applicant. Such an outcome is not
in line with judicial consideration of a matter, and emphasises the close
relationship between ACC and reviewers (ie, it is deemed to be a failure for which
ACC is accountable for);

h. hearings are not conducted in public, and the attendance of observers requires the
consent of all parties.

47. In Creedy, most of Trapp tests would have been satisfied, but it was the statutory scheme of the Police Act that meant the Supreme Court saw the process as an administrative not a judicial one. I remain of the view that the same applies to the ACC legislation and that, however ACC engages its reviewers, it does so to have them carry out an administrative review rather than a judicial function.

November 16, 2016

Further to your request for information, please see our letter of acknowledgement of 16 November 2016 attached.

Yours sincerely

Rebecca Lee

Complaints Investigation and Privacy Officer

T: 03 962 9073

[1]www.fairwayresolution.com

[2]Facebook_LIKE[3]Twitter_FOLLOW [4]Google-plus-icon [5]InBug-16px_0

FairWay Resolution Limited Tā te Hinengaro Tōkeke Whakatau

PO Box 841, Christchurch 8140. 16 Southwark Street, Christchurch 8011

[6]FairWay_portrait_strapline_32mm

Privacy Notice: Because it is important to you, privacy is central to our values. We are committed to providing services in an ethical manner. Personal information of applicants, claimants, complainants, employees and business partners is processed and held in order to provide the highest level of service. Go to http://www.fairwayresolution.com/privacy... to view our full privacy policy and notice or email us at [FairWay Resolution Limited request email] for further information.

From: David Lawson

December 12, 2016

Dear Rebecca Lee,

I refer you to my request for official information requested from FairWay Resolution Limited on the 13 November 2016, and your acknowledgement of my request received through the FYI website dated 16 November 2016.

I have received the following FYI prompt;

"FairWay Resolution Limited have delayed.

They have not replied to your FOI request Misinformation provided within the release of the FairWay Reviewers Training Manual? promptly, as normally required by law.

Click on the link below to send a message to FairWay Resolution Limited reminding them to reply to your request."

I note that with 20 working days having expired at the end of business close on 9 December 2016, without me being provided by FairWay Resolution Limited with a legitimate reason for the delay in the provision of the official information that my request of 13November 2016 seeks, FairWay Resolution now stands in breach of my statutory rights afforded to me under the Official Information Act 1982.

I therefore welcome under urgency by the end of business close on Monday 12th December 2016 the full and valid provision of the official information provided through the FYI website, that as of the end of business close on 9 December 2016, now stands outstanding under the statutory terms of the Official Information Act 2016.

December 19, 2016

I apologise for the delay in responding to you, please find attached letter of 19 December 2016 from Mr Rhys West.

Yours sincerely

Rebecca Lee

Complaints Investigation and Privacy Officer

T: 03 962 9073

[1]www.fairwayresolution.com

[2]Facebook_LIKE[3]Twitter_FOLLOW [4]Google-plus-icon [5]InBug-16px_0

FairWay Resolution Limited Tā te Hinengaro Tōkeke Whakatau

PO Box 841, Christchurch 8140. 16 Southwark Street, Christchurch 8011

[6]FairWay_portrait_strapline_32mm

Privacy Notice: Because it is important to you, privacy is central to our values. We are committed to providing services in an ethical manner. Personal information of applicants, claimants, complainants, employees and business partners is processed and held in order to provide the highest level of service. Go to http://www.fairwayresolution.com/privacy... to view our full privacy policy and notice or email us at [FairWay Resolution Limited request email] for further information.

From: David Lawson

December 19, 2016

Dear Mr Rhys West,

I write in response to your OIA reply dated 19 December 2016 and will reply following the provision of the 2012 case note that you mentioned was attached to your reply for which I have been unable to locate. You quoted as follows;

"We attach a copy of the 2012 case note of the Office of the Privacy Commissioner which sets
out the views and opinion of the Privacy Commissioner."

I look forward to receiving the attachment under urgency within the next 24 hours, and will respond accordingly to your response once recieved.

From: David Lawson

December 20, 2016

Dear Rebecca Lee,

I note that the 2012 case notes from the Privacy Commissioner in respect of section 2 (viii) of the privacy act which predated the Ombudsman's ruling this year that Reviewers do not preform judicial functions of a tribunal.

From page 28 of the Reviewers Training manual which states that;

Secondly, it is considered that a reviewer comes within the exception, "(xii) A commission of inquiry or board of inquiry or court of inquiry or committee of inquiry appointed, pursuant to, and not by, any provision of an Act, to inquire into a specific matter." Therefore, the reviewer is not bound by the Privacy Act and the Health Information Privacy Code, and does not have to comply with the restrictions the Act and the Code puts on the collection, use, and disclosure of personal information."

I was left with the impression that the Privacy Commission must have also ruled that this was the case with respect to section 2 (xii) of the privacy act...but the case note that you have provided has no reference to the Privacy Commissioner stating that a Reviewer is exempt from the concept of agency for the purposes of the Privacy Act due to section 2 (xii) of the Privacy Act.

OIA Request.

I therefore request to be provided with a full copy of all the OIA information which validates Fairway Resolution's legal basis/ opinion for advising Reviewer's in the Reviewers training manual that section 2 (xii) applies to Reviewers and that this section of the Privacy Act excludes a Reviewer from being considered an agency under the privacy act and therefore excludes the reviewer from having to comply with the Privacy Act 1993, the Health Information Code 1994, the ACC Act and the ACC Code of Claimants rights.

Open letter to Acting CEO of Fairway Resolution Limited, Mr Rhys West :

In Fairway Resolution Limited’s letter dated 19 December 2016 addressed to Mr D Lawson published at FYI.org.nz it was stated by you at para. 4 that; “The Ombudsman’s opinion related to release of the Benchbook under the Official Information Act and the application or otherwise of section 2(6)(b) of the Official Information Act 1982. It made no comment or findings as to the application of ACC’s Code of Claimants’ Rights or the Privacy Act 1993.”

The abovementioned statement is not only untrue but also misleading since not only are there numerous comments made by the Ombudsman in his Benchbook Release Determination that relate and refer to the Privacy Act specifically, but the Ombudsman also referred to and commented on various Privacy Act related findings. Crucially, the Ombudsman made it abundantly clear at clause 37 on page 11 of his determination that; “Both Fairway and ACC are agencies within the meaning of the Privacy Act. Neither is a tribunal or has judicial functions.” Of course, Section 2(1)(b)(viii) of the Privacy Act interprets an “agency” to “not include” … “in relation to its judicial functions, a tribunal”.

Fairway Resolution Limited has in fact confirmed in writing that it is not “a tribunal”. It also employs a “Privacy Officer” in the person of Ms Rebecca Lee, whose role and duty it is to ensure compliance with privacy statute provisions. Accordingly there can be no argument that Fairway Resolution Limited has accepted it is “an agency” for the purposes of the Privacy Act.

Against the abovementioned background, at para. of your letter to Mr Lawson you stated further that; “The position with the Privacy Act 1993 is distinct from the Official Information Act 1982”. Again this really is not true as explained below ;
• Section 2(6) of the Official Information Act reads; “For the avoidance of doubt, it is hereby declared that the terms department and organisation do not include …” with sub-clause (b) adding; “in relation to its judicial functions, a tribunal.”
• Section 2(1) of the Privacy Act reads; “agency --- (a) means any person or body of persons, whether corporate or unincorporated, and whether in the public sector or the private sector, and, for the avoidance of doubt, includes a department, but (b) does not include ---(viii) in relation to judicial functions, a tribunal …”

Thus Section 2(6)(b) of the Official Information Act and Section 2(1)(b)(viii) of the Privacy Act read exactly the same and share identical meaning and purpose.

If Section 2(6)(b) of the Official Information Act applies to Fairway Resolution Limited, as the Ombudsman has determined it does, then Section 2(1)(b)(viii) applies equally. There is no “distinction”.

It was also further stated by you at para. 7 of the abovementioned letter that; “We would note that even though reviewers are not considered to be an agency for the purposes of the Privacy Act 1993, they are still required to adhere to standard information management processes and still be respectful of an individual’s privacy.”

Either you do not know or have chosen to ignore that the Ombudsman, however, commented in the Benchbook Release Determination at clause 42; “I do not consider that ACC (far less FairWay) can determine or change the statutory nature of reviewers’ functions by the manner in which it engages reviewers, as this would be to ‘carve out a segment of its affairs for exemption from the provisions of the Privacy Act’.14 If (as Arbuthnot suggests) ACC employees are performing administrative functions in conducting a review, I see no basis for accepting that, by opting not to use employees for that purpose, ACC can transform a reviewer into a tribunal performing judicial functions.” The Ombudsman clearly considers that the reviewers – regardless of who “engages” them (ACC or Fairway Resolution Limited) - are “an agency” for the purposes of the Privacy Act, and, they are therefore not exempt from complying with the provisions of the Privacy Act.

It is beyond any plausible stretch of the imagination, and also beyond any conceivable statutory interpretation, that “acting in the nature of a tribunal” means that reviewers are a tribunal or that their functions are judicial.

It is noted that neither Fairway Resolution Limited or the Privacy Commissioner have been able to point to any statute that supports the shared view Fairway Resolution Limited and the Privacy Commissioner that reviewers are not subject to compliance with the provisions of the Privacy Act (or other privacy statutes) This is something that will be determined in 2017 pursuant to me filing my complaints with the Human Rights Review Tribunal in regard to these matters.

February 07, 2017

Further to your request for information made 20 December 2016, please see our letter of 7 February 2017 attached.

Yours sincerely

Rebecca Lee

Complaints Investigation and Privacy Officer

[1]www.fairwayresolution.com

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FairWay Resolution Limited Tā te Hinengaro Tōkeke Whakatau

PO Box 841, Christchurch 8140. 16 Southwark Street, Christchurch 8011

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Privacy Notice: Because it is important to you, privacy is central to our values. We are committed to providing services in an ethical manner. Personal information of applicants, claimants, complainants, employees and business partners is processed and held in order to provide the highest level of service. Go to http://www.fairwayresolution.com/privacy... to view our full privacy policy and notice or email us at [FairWay Resolution Limited request email] for further information.